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Mapping Landscapes of the Mind: a Cadastral Conundrum in the Native Title Era

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Mapping Landscapes of the Mind: a Cadastral Conundrum in the Native Title Era Mapping landscapes of the mind: A cadastral conundrum in the Native Title era Graeme Neate President, National Native Title Tribunal Presented at the UN-FIG Conference on Land Tenure and Cadastral Infrastructures for Sustainable Development, Melbourne, Australia 25-27 October 1999 ABSTRACT When the Crown progressively assumed sovereignty over different parts of Australia, groups of Aboriginal and Torres Strait Islander peoples had their own laws and customs which made them traditional owners of different parts of the land. Despite more than two centuries of colonisation, traditional links to land have survived and are exercised in some places. Through the prism of their cultural heritage, traditional owners of the land see geological features and items of vegetation as instances of Dreamtime activity. The stories, the songs, the ceremonies and the language are embedded in the land but are maintained in the minds of successive generations of traditional owners. The features of the landscape can be observed by all, but their meaning and significance is known to the few. In that sense, the traditional estates of indigenous groups are landscapes of the mind. The legal recognition of indigenous peoples’ rights and interests in land, and laws providing for the recognition and protection of areas of particular significance to indigenous Australians, have generated the need to precisely describe the location and extent of indigenous interests in land. That requirement gives rise to numerous issues about how indigenous peoples’ rights are to be recorded and how competing land use disputes are to be resolved. Surveyors need to understand that: • the rights and interests of indigenous people in their traditional country will not necessarily accord with conventional legal notions of property; • in some areas two or more groups of people may have mutually recognised traditional rights and interests; • in some areas the boundaries of traditional estates may be clearly defined by reference to natural features, but elsewhere the boundaries are imprecise, permeable and periodically negotiable. It may not be possible to plot traditional estates or significant sites by conventional cartographic means, or record them cadastrally. Rather than attempt to record such estates and sites by using cadastral boundaries, it may be better to note, by references to areas mapped for other purposes, which group has (either alone or with others) which traditional rights and interests. Keywords and phrases: Native Title Law, Indigenous people, Bogor Declaration 1 INTRODUCTION Australia is a land of contrasts, and the way people see and think about the land is influenced by their cultural background. 1 Early European settlers and explorers expressed a variety of responses to the landscape. Some first impressions were not favourable. In 1788, soon after a settlement was established on the east coast, Major Robert Ross wrote to Under- Secretary Nepean, “I do not scruple to pronounce that in the whole world there is not a worse country than what we have yet seen of this. All that is contiguous to us is so barren and forbidding that it can in truth be said, here Nature is reversed …”.1 The Surgeon-General of the colony, John White, was no less flattering when he wrote two years later of “a country and place so forbidding and so hateful as only to merit execration and curses”.2 Yet others saw a rare beauty in this “land of wonder and delight … a new creation”.3 Convict artist Thomas Watling waxed eloquent: “Perhaps nothing can surpass the circumambient windings and romantic banks of narrow arm of the sea that leads from this to Parramatta, another settlement about fourteen miles off. The Poet may there descry numberless beauties; nor can there be fitter haunts for the imagination. Arcadian shades, or classic bowers, present themselves at every winding to the ravished eye. Overhead the most grotesque foliage yields a shade, where cooling zephyrs breathe every perfume. Mangrove avenues, and picturesque rocks, entwined with non-descript flowers. In short, were the benefits of the least equal to the specious external, this country need hardly give place to any other on earth. … Should the curious Ornithologist, or the prying Botanist, emigrate here, they could not fail of deriving ample gratification in their favourite pursuits in this luxuriant museum.”4 Explorers set out to open up and map the country. They searched for places for agricultural and pastoral pursuits. Some searched for a great inland sea. There was much disappointment, despair, even death, as Europeans came to grips with the demands of the land. In September 1845, explorer Charles Sturt turned back from the Simpson Desert in central Australia and wrote: “It is impossible to find words to describe the terrible nature of this dreadful Desert. The view from one of the ridges is perhaps the most terrific and cheerless that man ever gazed upon. The ridges run as straight as an arrow 330o, rising from an immense black plain in long fiery lines.”5 But the terror and despair of the inland was matched by the welcoming expanses of the coast along which most of the Australian population congregates, the lushness of 1 Quoted in A H Chisholm (ed) Australia: Land of Wonder, Angus & Robertson, 1979, p16. 2 Surgeon-General White to Mr Skill, 17 April 1790, quoted id. 3 Rev T F Palmer to Rev J Joyce in England, 15 December 1794, quoted id. 4 Thomas Watling to his aunt in Dumfries, 1793, quoted id. 5 Quoted in Land Tribunal, Aboriginal Land Claim to Simpson Desert National Park, 1994, para 23. 2 the tropics, the wonders of snow clad ranges and the “clean, lean, hungry country” and “bony slopes” of the tableland areas.6 A young Englishman who worked as a gold-seeker, drover and mounted policeman in the 1850s in New South Wales and Victoria wrote rapturously of: “A new heaven and a new earth! Tier beyond tier, height above height, the great wooded ranges go rolling away westward, till on the lofty skyline they are crowned with a gleam of everlasting snow. To the eastward they sink down, breaking into isolated forest-fringed peaks and rock-crowned eminences, till with rapidly straightening lines they fade into the broad grey plains, beyond which the southern ocean is visible by the white sea-haze upon the sky. All creation is new and strange. The trees, surpassing in size the largest English oaks, are of a species we have never seen before. The graceful shrubs, the bright-coloured flowers, ay, the very grass itself, are of species unknown in Europe; …”.7 With the European explorers and settlers came the artists and writers. They too had to grapple with a landscape that was both unfamiliar and intriguing. Much of the finest Australian art has been and is devoted to the landscape, or has the land as a key element.8 But the cultural background of the observer has conditioned how the land is viewed. Australian art critic Robert Hughes has described one early romantic view of Port Jackson as “pure self-hypnosis” which could be explained in the following way: “Cultivated thought in England, after news of the Tahitians on their island paradise, saw the South Seas as a reincarnation of the Virgilian Golden Age. Most visitors had their schema already fixed for them”.9 According to Hughes, “This still happens, but the schema is different. Instead of the green Virgilian meadow with ruined gazebos and Noble Savages, we have the implacable desert of antipodean weirdness”.10 Thus, English art critic Sir Kenneth Clark could write: “In this dry land there are no dark woods (I do not consider the jungle authentically Australian), no thick, sappy substances; the forms of gravity are continually denied by flying foxes and bounding Kangaroos”.11 6 See “South of my days” by Judith Wright reprinted in M O’Conner (ed) Two Centuries of Australian Poetry, Oxford University Press Australia, 1988, p 67. 7 H Kingsley, The Recollections of Geoffry Hamlyn, 1859, quoted in A H Chisholm (ed), Australia: Land of Wonder, op cit, p 18. 8 For example, see E Lynn The Australian Landscape and its Artists, Bay Books, Sydney, 1977. 9 R Hughes, The Art of Australia, Pelican, 1970, p 30. 10 Id. 3 Our composers also have drawn inspiration from the land. Peter Sculthorpe, who has written pieces evocative of the land,12 was recently quoted as saying he is spending his life “trying to find what the spirit of the landscape – physiological, psychological, spiritual – means to me”.13 The contrast between British values about landscape and Australian values is captured in a poem learned by many Australian school children: “The love of field and coppice, Of green and shaded lanes, Of ordered woods and gardens Is running in your veins. Strong love of grey-blue distance, Brown streams and soft, dim skies - I know but cannot share it, My love is otherwise. I love a sunburnt country, A land of sweeping plains, Of ragged mountain ranges, Of droughts and flooding rains. I love her far horizons, I love her jewel-sea, Her beauty and her terror - The wide brown land for me!”14 The significance of the land for indigenous Australians has been noted in the draft preamble which the Prime Minister is urging us to adopt for inclusion in the Australian Constitution. The text speaks of: “honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and continuing cultures which enrich the life of our country.” In the meantime, the Council for Aboriginal Reconciliation, established in 1991,15 has as its vision: “A united Australia which respects this land of ours, values the Aboriginal and Torres Strait Islander heritage, and provides justice and equity for all.” 11 Quoted id.
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